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60 F.

3d 727

Bernard BOLENDER, Petitioner-Appellant,


v.
Harry K. SINGLETARY, Secretary, Florida Department of
Corrections, Respondent-Appellee.
No. 95-4876.

United States Court of Appeals,


Eleventh Circuit.
July 17, 1995.

Mark Evan Olive, Anne Faith Jacobs, Volunteer Lawyers' PostConviction Defender Organization, Inc., Tallahassee, FL, for appellant.
Fariba Nora Komeily, Asst. Atty. Gen., Dept. of Legal Affairs, Miami,
FL, for appellee.
Appeal from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, Chief Judge, COX and DUBINA, Circuit Judges.

BY THE COURT:
1

Petitioner Bernard Bolender is a Florida death row inmate; his execution is


scheduled for tomorrow morning, Tuesday, July 18, 1995, at 7 o'clock. Earlier
today the district court denied Bolender's second petition for habeas corpus
relief and his application for a certificate of probable cause to appeal. The
district court also denied Bolender's application for a stay of his execution.

Petitioner has now applied to this court for a certificate of probable cause to
appeal and for a stay of his execution. We deny the certificate. Because we
anticipate that the petitioner will apply to the Supreme Court for a writ of
certiorari, we stay petitioner's execution until 10:00 a.m. tomorrow, July 18,
1995, to give the Court an opportunity to consider petitioner's application. Any
stay beyond that shall issue from the Supreme Court.

The claims the district court has dismissed were first included (in their present
form) in a motion petitioner filed pursuant to Rule 3.850 of the Florida Rules of
Criminal Procedure in the Circuit Court of Dade County on June 8, 1995. That
court rejected the claims because they were procedurally barred; accordingly,
the court did not reach any of petitioner's claims on the merits. The Supreme
Court of Florida affirmed, Bolender v. Florida, No. 86,020, --- So.2d ----, 1995
WL 419737 (Fla. July 11, 1995), agreeing that Bolender's claims were
procedurally barred. Claims 1 through 6 were barred because "[t]he facts upon
which Bolender relies could have been obtained through the use of due
diligence more than two years prior to the filing of this motion." Claim 7,
seeking an evidentiary hearing on all claims, was rejected because the record
demonstrated conclusively that all of Bolender's claims were procedurally
barred. Claim 8, claiming ineffective assistance of counsel, was barred as a
successive claim (having been raised in a prior Rule 3.850 motion). Claim 9, a
Brady claim that Bolender had pursued and effectively abandoned in a prior
Rule 3.850 petition, was barred because it constituted a "successive" petition
and, further, was untimely. Claim 10, asserting the sentencing judge's
predisposition to impose the death penalty, was procedurally barred as not
cognizable in Rule 3.850 proceeding; the claim was disposed of on direct
appeal. Id. slip op. at 8-10, at ---- - ----.

The district court properly concluded that all of the claims presented in
Bolender's petition are procedurally barred under Florida law. The district court
also properly concluded that, aside from the state procedural bars, the claims
constitute a "successive petition" or an abuse of the writ under Rule 9(b) of the
Rules Governing Section 2254 Cases in the United States District Courts.
Petitioner's claims are successive to the extent that they replicate claims
brought in his 1990 federal petition, and they constitute an abuse of the writ
because petitioner has shown no cause for not asserting his claims in his first
federal habeas petition.

Finally, we agree with the district court that petitioner has not demonstrated his
"actual innocence" of the murders involved in this case.

For the foregoing reasons, petitioner's application for a certificate of probable


cause is DENIED. His execution is stayed until 10:00 a.m., Tuesday, July 18,
1995.

Our mandate shall issue at 5:00 p.m. EDT today. The filing of a petition for
rehearing or rehearing en banc shall not stay the issuance of the mandate.

IT IS SO ORDERED.

IT IS SO ORDERED.

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